Wadsworth and Gale - [2009] FMCAfam 537

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WADSWORTH & GALE

[2009] FMCAfam 537

FAMILY LAW – Parenting – interim hearing – relocation – alleged contravention of consent orders – child attending two different schools – duress – acquiescence to relocation – contravention application dismissed – relocation allowed.

Family Law Act 1975, Part VII, ss.60B, 60CC, 61DA, 65DAA

Barton v Armstrong [1976] AC 104
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Earl of Chesterfield v Janssen (1751) 28 ER 82
Goode v Goode (2007) 36 Fam LR 422
Keach & Keach (2007) FLC ¶93-353
Morgan v Miles (2008) 38 Fam LR 275
SH & DH (2003) FLC ¶93-164

Applicant:

MS WADSWORTH

Respondent:

MR GALE

File Number:

CAC 279 of 2009

Judgment of:

Neville FM

Hearing date:

7 May 2009

Date of Last Submission:

7 May 2009

Delivered at:

Canberra

Delivered on:

5 June 2009

REPRESENTATION

Advocate for the Applicant:

Ms Burgess

Solicitors for the Applicant:

Legal Aid ACT

Advocate for the Respondent:

Ms Naidoo

Solicitors for the Respondent:

Patrick Black & Associates

ORDERS

That the Contravention Application filed by the father in the [T] Local Court on 5 February 2009 be dismissed.
That the parties have equal shared parental responsibility for the child [X] born in 2004.
That the child live with the mother.
That the child spend time with the father as follows:
(a)Every second weekend from 5:00pm on Friday until 6:00pm on Sunday;
(b)For ten days in each school term holiday period; and
(c)For four weeks in the Christmas school holiday period.
That the child may communicate with the father by telephone on at least one occasion per week as agreed between the parties.
That changeovers are to occur at a place to be agreed between the parties.
That the mother is to undergo no more than three random urinalysis tests for non-prescription and illicit drugs within 24 hours of receipt of such a request from the father’s solicitor. The results of the testing are to be made available within 7 days of receipt.
That the mother is restrained from changing the child’s residence outside of the Australian Capital Territory without the father’s prior written consent or an order of the Court.
That the matter be adjourned to 23 September 2009 at 10:30am.

IT IS NOTED that publication of this judgment under the pseudonym Wadsworth & Gale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAC 279 of 2009

MS WADSWORTH

Applicant

And

MR GALE

Respondent

REASONS FOR JUDGMENT

A. Introduction

There are three preliminary issues that should be dealt with at the outset. Once those issues are resolved, in large measure the parenting orders that should be made in relation to 5-year-old [X], to a significant degree, will resolve themselves.
The three issues relate to (i) whether or not the Consent Orders that were signed by the parties and filed with the Local Court at [T] on 28 June 2007 were executed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wadsworth and Gale

Details

AGLC: Wadsworth and Gale [2009] FMCAfam 537
Case: [2009] FMCAfam 537
Decision Date: 5 June 2009

CaseChat Overview and Summary

In the Family Court of Australia, Wadsworth and Gale were the parties involved in a dispute over the care, control, and welfare of their child, X, born in 2004. The father, Wadsworth, filed a contravention application in the Local Court, which was subsequently brought to the Family Court. The primary issues for determination included the allocation of shared parental responsibility, the living arrangements for the child, and the specifics of the father's time with the child.

The court considered the best interests of the child as the paramount concern, taking into account evidence and submissions from both parties. The mother was found to be the primary caregiver, and the court determined that the child should continue to live with her. The father's visitation rights were carefully delineated, including regular weekend visits, holiday periods, and a substantial Christmas break. The court also ordered communication between the child and the father, and stipulated conditions for changeovers and drug testing of the mother. Additionally, restrictions were placed on the mother's ability to relocate the child outside the Australian Capital Territory without the father's consent or court approval.

The court dismissed the father's contravention application and outlined specific parenting arrangements. The orders included equal shared parental responsibility, residence with the mother, detailed visitation schedules for the father, and communication protocols. The mother was also required to undergo drug testing and restricted from relocating the child without consent. The matter was adjourned for a future review.

Orders

Orders of the court

That the Contravention Application filed by the father in the [T] Local Court on 5 February 2009 be dismissed.

That the parties have equal shared parental responsibility for the child [X] born in 2004.

That the child live with the mother.

That the child spend time with the father as follows:

(a) Every second weekend from 5:00pm on Friday until 6:00pm on Sunday;

(b) For ten days in each school term holiday period; and

That the child may communicate with the father by telephone on at least one occasion per week as agreed between the parties.

That changeovers are to occur at a place to be agreed between the parties.

That the mother is to undergo no more than three random urinalysis tests for non-prescription and illicit drugs within 24 hours of receipt of such a request from the father’s solicitor. The results of the testing are to be made available within 7 days of receipt.

That the mother is restrained from changing the child’s residence outside of the Australian Capital Territory without the father’s prior written consent or an order of the Court.

That the matter be adjourned to 23 September 2009 at 10:30am.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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